P. v. Ellis

Filed 12/31/09 P. v. Ellis CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant Holly Ellis was convicted of two counts of child abuse after her four-month-old child was found to have second degree burns and brain injuries consistent with severe shaking. At the time she brought the baby to the hospital for treatment of seizures, defendant admitted having caused the burns. At trial, however, the babys father and grandfather testified the father had caused the burns and denied any knowledge of the babys brain injury. Defendant contends the prosecutor violated her right not to testify during his closing argument by drawing attention to defendants failure to testify. She also contends that since the father and grandfather could have been found to be accomplices, the trial court erred by failing to instruct on accomplice testimony.We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged in an information filed May 2, 2007, with two counts of child abuse. (Pen. Code,  273a, subd. (a).) With respect to both counts, it was alleged defendant personally inflicted great bodily injury on a child under the age of five years. (Pen. Code,  12022.7, subd. (d).)

Defendant brought her baby, R., suffering from violent, life-threatening seizures, to a hospital emergency room late on the night of April 2, 2007. At the time, R. was not quite four months old and was living in an apartment with defendant, his father, Edward Rivera, and his grandfather, Mario Rivera. Edward worked a night shift, supporting the family, while defendant provided primary care for R. and Mario, who was partially disabled.[1] After the baby was born, defendant was often irritable and would sometimes sleep or leave the home during the day, leaving R. in Marios care. All three were alone with R. at times.

When he arrived at the hospital, R. had visible injuries to his eyes, ear, and buttocks. Defendant explained to a police officer and others at the hospital she inadvertently burned R.s buttocks after she found him unresponsive in his crib three days earlier. When she placed him under running water to revive him, she accidentally used hot water. She thereafter gave him CPR, but she did not seek professional medical care until, on the evening of April 2, she found him twitching and then lethargic. Defendants face was straight, rather than upset, while she narrated R.s difficulties.

A physician testified that when R. was brought to the hospital, he showed signs of abuse. He had several small bruises across his shin, second degree burns on his buttocks and genitals, and injuries to his eyelids and ear. Because R. was not yet ambulatory, the injuries were likely inflicted on him. The ear injury was consistent with his having been struck, and the burns likely occurred when R.s buttocks were placed under flowing hot water. A CAT scan of R.s head showed retinal bleeding and two areas of bleeding within and about the brain, one with new blood, within 24 hours or so, and the other within a few days to a couple weeks old. The pattern was consistent with shaken baby syndrome, caused by R.s head having been shaken back and forth violently.

R.s father, Edward, testified it was he, not defendant, who caused R.s burns. Edward explained he placed R. under a running tap to clean his buttocks, inadvertently using excessively hot water. Defendant was out of the house at the time. When defendant returned home, she wanted to take R. to the hospital, but Edward declined from concern he would be charged with a probation violation. On the night R. was taken to the hospital, a similar concern for Edwards probation status caused both him and defendant to tell police defendant burned the baby.[2] Edward did not know how the injuries to R.s head had occurred; he denied ever shaking or striking R., and he had never seen defendant lose her temper with R. or shake him. Edward considered defendant to be a loving and caring mother who was [n]ever physically aggressive with the child.

R.s grandfather, Mario, testified he spent much of his time in his room because he is diabetic and suffers from knee pain for which he takes medication. Both of his knees have been replaced, making it difficult for him to get around. Defendant was his caretaker. On occasion, Mario would watch R. while defendant was otherwise occupied, usually for relatively short periods. Because of Marios difficulty in ambulating, the baby was brought to his bed at these times. Because he disliked being left alone in the familys apartment with the baby, defendant or Edward would ordinarily take the baby along when they both left the house. It was Mario who suggested R. be taken to the hospital, after the baby started shaking while Mario was watching him. At the time, Edward had already left for work.

Mario denied ever shaking R. vigorously or slapping him, contending he lacked the ability to do so as a result of his physical condition, although he was still capable of picking the baby up. He had seen defendant get angry with the baby only once, but he never saw her shake R. A police officer testified that when she spoke to Mario earlier, he said defendant was depressed following R.s birth, got mad at everyone, and yelled at him, Edward, and the baby, although Mario denied he had ever said this. Mario also told the investigator both Edward and defendant informed him defendant had caused R.s burns.

Because all three adults in the household had access to the baby, a major issue at trial was which of the three had inflicted R.s injuries. During his closing argument, the prosecutor first addressed infliction of the burns, telling the jury it should conclude from defendants statements to police and her efforts to hide the burns she had intentionally inflicted them. The prosecutor then turned to the brain injuries, saying:

Who had access to this baby during that time period? Well, its been pretty consistent, right, who had access to this baby. Theres three people. Theres Mario Rivera, theres Edward Rivera, and theres [defendant]. Nobody else had access. So youve narrowed it down from everybody else in the world to these three people, and so we have to look at these three people very carefully.

You heard from two of them. Edward Rivera testified, and you heard about his time. We went very carefully, and [defense counsel] went very carefully through the days after this baby was burned. When was he really alone with the child? When was he alone with the child? When did he have an opportunity to cause injury to this child?

And then Mario Rivera. Well, he had plenty of time, right. I mean, he spent hours and hours with this child during that weekend, but he also told you that it was physically impossible, and so didso did Edward Rivera. And you had the opportunity to see him take the stand, and listen to him and see him walk to the stand, and if you believed him to be credible, really thats what it gets down to.

If these gentlemen were credible in your eyes about thosethose instances of their testimony, then the only logical conclusion is that the defendant is the one that shook this poor child and caused the brain injuries to him.

When did she have opportunity to do it? When did she have opportunity to do it? Ill posit to you that on Monday, she had the opportunity to shake this child. Edward was sleeping all day. He was getting ready for his night shift at Wal-Mart. And, yes, Mario had the child for a significant portion of the day, but he also never left his room, right. . . .

Did you believe Edward and Mario about their testimony, that Edward didnt really have an opportunity to harm this child, and Mario, who just physically couldnt harm the child? And if you do, then you should find the defendant guilty.

The jury found defendant guilty on both counts of child abuse and found true both allegations she personally inflicted great bodily injury on R. She was sentenced to a total of 12 years.

II. DISCUSSION

A. Griffin Error

Defendant first argues the prosecutors discussion of the testimony of Edward and Mario constituted an impermissible reference to her decision to invoke her right not to testify, commonly known as Griffinerror. (Griffin v. California (1965) 380 U.S. 609, 615 (Griffin).)

Under the Fifth Amendment of the federal Constitution, a prosecutor is prohibited from commenting directly or indirectly on an accuseds invocation of the constitutional right to silence. Directing a jurys attention to a defendants failure to testify at trial runs the risk of inviting the jury to consider the defendants silence as evidence of guilt. [Citations.] (People v. Lewis (2001) 25 Cal.4th 610, 670.) Thus, prosecutors must walk a fine line when treading in this area. A prosecutor may call attention to the defenses failure to put on exculpatory evidence, but only if those comments are not aimed at the defendants failure to testify and are not of such a character that the jury would naturally and necessarily interpret them to be a comment on the failure to testify. (People v. Guzman (2000) 80 Cal.App.4th 1282, 1289.) [A] prosecutor may commit Griffin error if he or she argues to the jury that certain testimony or evidence is uncontradicted, if such contradiction or denial could be provided only by the defendant, who therefore would be required to take the witness stand. (People v. Bradford (1997) 15 Cal.4th 1229, 1339.) Despite these principles, the prohibition  does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or call logical witnesses.   (People v. Hughes (2002) 27 Cal.4th 287, 372.)

Defendant waived any Griffinerror when her counsel failed to object to it at trial. Such error is waived in the absence of an objection, unless an objection would have been futile or ineffective. (People v. Brown (2003) 31 Cal.4th 518, 554; People v. Mesa (2006) 144 Cal.App.4th 1000, 1007.) There is no reason to believe anobjection here would have been either futile or ineffective.

Regardless of any waiver, examination of the prosecutors closing argument demonstrates he engaged in permissible comment on the state of the evidence, not an attempt to draw attention to defendants failure to testify. He began with the observation only three people could have injured R., two of whom had testified. Next, he discussed the nature of that testimony. Based on Edwards and Mariostestimony, the prosecutorargued, the jury could conclude Edward had little time alone with R. during the critical period and Mario was physically incapable of inflicting the abuse. If the jury believed their testimony, the prosecutor argued, the only logical conclusion is that the defendant is the one that shook this poor child and caused the brain injuries to him. Rather than a comment on defendants failure to testify, this is a textbook demonstration of deductive reasoning.

The fact that the prosecutor said two of the people who had an opportunity to injure R. had testified, thereby implicitly pointing out defendants failure to testify, did not alone constitute Griffin error. In order to violate the Fifth Amendment, a prosecutors direct or indirect reference to the defendants failure to testify must also have implied the jury should draw some inference from the failure. (E.g., People v. Murtishaw (1981) 29 Cal.3d 733, 757.) There was no such implication here. Instead, the prosecutor argued if the jury believed both Edward and Mario, the only person who could have inflicted the injuries was defendant. The inference the prosecutor urged was not based on defendants failure to testify but on the self-exculpatory nature of the testimony of Edward and Mario. Although this naturally implied defendant had abused R., the implication grew from a consideration of the evidence presented, not from defendants failure to testify.

Defendant relies almost exclusively on People v. Medina (1974) 41 Cal.App.3d 438 (Medina), in which the primary witnesses against the two defendants were three other persons who had been present at the time of the crimes and could have been charged as accomplices. (Id. at pp. 442, 452.) In summation, the prosecutor argued the three accomplices had been placed under oath and subjected to cross-examination and their testimony was  unrefuted.  (Id. at p. 457.) The Court of Appeal noted the effect of this argument was to urge the jury to believe the three accomplices because they had testified and been subjected to cross-examination while defendants had not. The court concluded a prosecutor commits Griffinerror by claiming an accomplice witnesss testimony is unrefuted when the defendant does not testify. (Id. at pp. 457, 459.)

The type of error found in Medinawas not present here. The prosecutor did not characterize the testimony of Edward and Mario as unrefuted, nor did he call undue attention to the fact of Edwards and Marios taking the stand. While he did note both testified, he did not emphasize their taking the oath and submitting to cross-examination, as the Medinaprosecutor had.

Because we find no Griffinerror, we need not consider the argument that defense counsels failure to object constituted ineffective assistance of counsel.

B. Failure to Instruct on Accomplice Testimony

Defendant next contends the trial court erred in failing to instruct the jury on the consideration of accomplice testimony, arguing Edward and Mario could have been found to be accomplices.

Under Penal Code section 1111, a defendant cannot be convicted solely on the basis of the testimony of an accomplice; such testimony must be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense. The statute has its roots in the fact that experience has shown that the evidence of an accomplice should be viewed with care, caution and suspicion because it comes from a tainted source and is often given in the hope or expectation of leniency or immunity. [Citation.] A coperpetrator has a natural incentive to shift blame to the accused in hopes of minimizing his or her own culpability. [Citations.] . . . Additionally, accomplice testimony frequently is cloaked with plausibility because the accomplice has firsthand knowledge of the facts of the crime and can weave a convincing story. (In re Christopher B. (2007) 156 Cal.App.4th 1557, 1561.)

The trial court has a sua sponte duty to instruct on Penal Code section 1111    whenever the testimony given upon the trial is sufficient to warranttheconclusionupon the part of the jury that a witness implicating a defendant was an accomplice,    regardless of whether the prosecution actually charges the witness as an accomplice. (People v. Richardson (2008) 43 Cal.4th 959, 1024.) For purposes of section 1111, an accomplice is one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given. To be chargeable with an identical offense [under section 1111], a witness must be considered a principal under [Penal Code] section 31.^[[3]] [Citations.] An accomplice must have  guilty knowledge and intent with regard to the commission of the crime.   (People v. Lewis (2001) 26 Cal.4th 334, 368369.) Further, the determination of accomplice liability is offense-specific. (People v. Felton (2004) 122 Cal.App.4th 260, 273.) In other words, the failure to instruct with respect to accomplice testimony does not constitute error with respect to a particular criminal charge unless the witness could be found to be an accomplice with respect to that particular charge. (Ibid.)

Finally, the failure to instruct on accomplice testimony is subject to harmless error review under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. Moreover, even where there is a failure to instruct on accomplice testimony, such error is harmlessif there is sufficient corroborating evidence in the record. [Citation.] Corroboratingevidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. (People v. Whisenhunt (2008) 44 Cal.4th 174, 215.)

There is no evidence from which the jury could have concluded Edward and Mario were accomplices with respect to the infliction of R.s head injuries. While both witnesses were alone with R. for at least some of the time during the relevant period, and therefore had opportunity to commit the crime, there was no testimony suggesting they had a motive or inclination to harm R. in the manner suggested by the medical evidence. On the contrary, as the prosecutor argued, the testimony suggested Edward was preoccupied with his night-shift work during this time and Mario lacked the physical ability to abuse R. in this manner. Their mere presence with the baby is insufficient to trigger the obligation to deliver accomplice instructions.

Nor was there evidence from which the jury could conclude Edward and Mario should have known leaving the baby with defendant presented a risk to his health, as in People v. Felton, supra, 122 Cal.App.4th at pages 269270, cited by defendant. Both testified they had never seen defendant abuse the baby. While the injuries to R.s face might have alerted an expert to the possibility of shaken baby syndrome, there was no evidence these injuries should have caused the father and grandfather to suspect child abuse. Accordingly, there was no error in the failure to deliver accomplice instructions with respect to the count relating to R.s head injuries.

With respect to the charge relating to R.s burns, defendant argues Edward and Mario could have been found to be accomplices because they were aware of these severe injuries and took no action to get the baby medical help for at least three days after their infliction. (See, e.g., People v. Felton, supra, 122 Cal.App.4th at p. 269.) As defendant points out, this theory of child endangerment, which the prosecutor argued to the jury regarding defendant, applies as well to the other two caretakers. In addition, defendant argues, the jury could have found Edwards testimony of his infliction of R.s burns to have constituted child endangerment.

There is an irony in defendants argument. The instructions she contends should have been delivered would have instructed the jury to view Edwards and Marios testimony with caution and to require corroboration. (CALCRIM No. 334.) Yet their testimony tended to exculpate her of both charges of child abuse. Both witnesses claimed Edward caused the burns, and both expressed doubt defendant inflicted the shaking injuries. It is by no means clear, as a tactical matter, defendant would have preferred an instruction telling the jury to view such testimony with caution or require its corroboration. Although defendant was free to request accomplice instructions at trial, she did not do so.[4]

We need not decide whether the trial court had a duty to instruct on accomplice testimony in these unusual circumstances, however, because any error was harmless. On the charge of child abuse based on the burns, there was significant corroborating evidence tying defendant to the crime. Most obviously, defendant herself told the police she burned R. While defendant contends we should disregard this testimony because there was evidence she fabricated the story to protect Edward, the weight to be given to this testimony was an issue for the jury. Taking the evidence presented at trial as a whole, the jury reasonably could have rejected the explanation for defendants confession and accepted it as trueas in fact the jury did in concluding defendant personally inflicted R.s injuries. Further, on the basis of defendants statements to police, as well as her failure to bring the baby to the hospital sooner, the jury could have concluded defendant failed to seek proper care for R. following the burns, just as Edward and Mario did. Given this corroborating evidence, any error from the failure to instruct on accomplice testimony was harmless. (People v. Whisenhunt, supra, 44 Cal.4th at p. 215.)

C. Conflicting Jury Instructions

Defendant also argues the trial court erred in instructing with CALJIC Nos. 2.11.5 and 2.27 because Edward and Mario were potential accomplices.

CALJIC No. 2.11.5 is used when there is evidence suggesting someone other than the defendant was involved in the charged crime but is not on trial. It instructs the jury not to speculate about the reason that person has not been prosecuted. CALJIC No. 2.27 states the credible testimony of a single witness is sufficient to prove a particular fact. It has long been recognized that giving both of these instructions in an unmodified form in cases where accomplice testimony instructions are also given runs the risk of confusing the jury. (E.g., People v. Williams (1988) 45 Cal.3d 1268, 1313.) For that reason, the text of CALJIC No. 2.27 includes an optional modification qualifying the instruction in the event there was testimony by a witness whose testimony requires corroboration, such as a potential accomplice under Penal Code section 1111. In addition, the use notes for CALJIC No. 2.11.5 tell the court, Do not use this instruction if the other person is a witness for either the prosecution or the defense. (Use Note to CALJIC No. 2.11.5 (Fall 2009 ed.) p. 46.) The concern is that [w]hen an accomplice. . . testifies, the instruction might suggest to the jury that it need not consider the factors it otherwise would employ to weigh the credibility of these witnesses, such as the circumstance that the witness has been granted immunity from prosecution in return for his or her testimony. (People v. Cornwell (2005) 37 Cal.4th 50, 88.)

A defendant who fails to object to the giving of particular jury instructions waives any later claim of error, unless the instructional error is shown to affect the defendants  substantial rights.  (People v. Prieto (2003) 30 Cal.4th 226, 247.) By failing to object to these instructions at trial and making no argument in this court regarding substantial rights, defendant has waived her claim of instructional error.

Even in the absence of waiver, we would find no basis for reversal on these grounds. Initially, as noted above, there was no evidence suggesting Edward and Mario were associated with R.s head injuries. Accordingly, the instructions provide no basis for a finding of error on that charge based on those injuries. CALJIC No. 2.11.5 was simply irrelevant to this charge, while CALJIC No. 2.27 stated a rule properly applicable to it.[5]

While, as discussed above, Edward and Mario might have qualified as accomplices under Penal Code section 1111 on the charge associated with R.s burns, we find no reversible error in the giving of these instructions. The primary concern with these instructions is the possibility of confusion caused by their apparent conflict with standard accomplice instructions. (See, e.g., People v. Cox (1991) 53 Cal.3d 618, 667.) Because the trial court did not give accomplice instructions, there was no risk of confusion on this ground.

Assuming Edward and Mario could have been found to beaccomplices to child endangerment in connection with R.s burns, their testimony would have required corroboration. As to that charge, therefore, it was error to instruct with CALJIC No. 2.27 in the unmodified form. Any error, however, was harmless. As discussed above, the failure to instruct on accomplice testimony was not prejudicial because sufficient corroborating evidence was presented to satisfy Penal Code section 1111. The failure to modify CALJIC No. 2.27 to require corroboration for Edwards and Marios testimony constituted the same error as the failure to instruct on section 1111, and it was harmless for the same reason.

While defendant argues CALJIC No. 2.11.5 might have discouraged the jury from considering the motive of Edward and Mario to lie to avoid prosecution, courts have found this risk to be harmless when a full range of instructions properly instructing the jury on the assessment of witness credibility is given. (E.g., People v. Brasure (2008) 42 Cal.4th 1037, 1055; People v. Jones (2003) 30 Cal.4th 1084, 11131114; People v. Williams, supra, 45 Cal.3d at p. 1313.) Because such instructions were given here, any error in giving CALJIC No. 2.11.5 was harmless.

III. DISPOSITION

The judgment of the trial court is affirmed.

_________________________

Margulies, Acting P.J.

We concur:

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Dondero, J.

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Banke, J.

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[1] By common convention, we refer to family members sharing the same surname by their given names. We mean no disrespect by these informal references.

[2] In fact, Edward told three different stories about the burns. He initially told police defendant had inflicted the burns. Then he told them he had burned R. under the kitchen faucet. Finally, when threatened with a lie detector test, he told police he had burned R. under the bathroom faucet, as he testified at trial.

[3] Penal Code section 31 defines principals as [a]ll persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission . . . .

[4] This failure does not excuse the trial courts failure to give the instruction if appropriate, however, because the courts duty is sua sponte, independent of any request of counsel. (People v. Richardson, supra, 43 Cal.4th 959, 1024.)

[5] Defendant contends the prosecutor improperly relied on uncorroborated accomplice testimony in making the argument that is the basis for her Griffinerror claim, discussed above. The prosecutors argument, however, concerned only the charge relating to R.s brain injury. Because there was no evidence from which Edward and Mario could have been found to be accomplices on this charge, there was no need of corroboration for their testimony under Penal Code section 1111.